Opinion
No. CV-07-1553-ROS (PC).
September 1, 2011
ORDER
This order resolves the pending motion for judicial notice, motion to compel, motion to appoint counsel, request for a court order to allow Plaintiff access to copying services and legal envelopes, and application to submit continuing evidence.
Defendants' motion for summary judgment is still pending.
Plaintiff's Motion to Compel
Plaintiff moves to compel Defendants to respond to his requests for admission. (Doc. 77). Despite the fact that Plaintiff did not timely serve the requests for admission, Defendants agreed to respond. (Doc. 80). In their responses, despite compound requests for admission, Defendants separated the requests and addressed each one. Plaintiff's untimely motion to compel will be denied.
Plaintiff's Motion to Appoint Counsel
For the reasons stated in the Court's October 22, 2010 order (Doc. 63), Plaintiff's motion to appoint counsel (Doc. 78) will be denied. The Court does not find exceptional circumstances requiring appointment of counsel. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997).
Plaintiff's Request for a Court Order for Copying Services and Legal Envelopes
For the reasons stated in the Court's October 22, 2010 order (Doc. 63), Plaintiff's request for a court order to allow Plaintiff access to copying services and legal envelopes (Doc. 92) will be denied because Plaintiff has not shown he has suffered an actual injury or that he is likely to suffer irreparable harm. Plaintiff has filed numerous documents in this case, and has not established the alleged denial of copying services or envelopes has obstructed his access to the courts.
Plaintiff's Application to Submit Continuing Evidence
Plaintiff's application to submit continuing evidence (Doc. 95) will be denied because it is an untimely sur-reply and because it seeks to admit irrelevant documents. Aggers v. Tyson, 2011 U.S. Dist. Lexis 63720, *1 (E.D. Cal. 2011) ("The Federal Rules of Civil Procedure and the Local Rules of this Court do not contemplate the filing of sur-replies. See Local Rule 230. . . .").
Plaintiff's Motion for Judicial Notice
Plaintiff's motion for judicial notice (Doc. 69) will be denied because he has not explained the reason he seeks judicial notice and, therefore, the has not shown the documents are relevant. The party requesting judicial notice bears the burden of persuading the court judicial notice is proper. In re Tyrone F. Conner Corp., Inc., 140 B.R. 771, 781 (Bkrtcy. E.D. Cal. 1992); see also United States v. S. Cal. Edison Co., 300 F. Supp. 2d 964, 970 (E.D. Cal. 2004) (conclusions of law, conclusory allegations, unreasonable inferences, or unwarranted deductions of fact need not be accepted).
Plaintiff did not set forth his argument until his reply brief. His motion simply lists the documents and makes a blanket statement that they are relevant. Plaintiff's arguments rely on allegations that Defendants refused to admit to the authenticity of the documents at issue, and Plaintiff seeks to adopt factual holdings and findings. However, even when the Court takes judicial notice of documents, it "does not adopt their factual findings or holdings; it simply acknowledges their existence and contents." California ex rel. Lockyer v. Mirant Corp., 266 F.Supp.2d 1046, 1053 (N.D. Cal. 2003). Arguments must be made in the initial motion to allow the opposing party an opportunity to respond. Defendants were deprived of the opportunity to address Plaintiff's argument for judicial notice because Plaintiff did not set forth his argument until his reply. Plaintiff's motion for judicial notice will be denied with leave to refile.
Accordingly,
IT IS ORDERED Plaintiff's motion (Doc. 69) is DENIED with leave to refile.
IT IS ORDERED Plaintiff's motion (Doc. 77) is DENIED. IT IS ORDERED Plaintiff's motion (Doc. 78) is DENIED. IT IS ORDERED Plaintiff's request (Doc. 92) is DENIED. IT IS ORDERED Plaintiff's application (Doc. 95) is DENIED.